criminal procedure - salvador 2010 bar review lecture transcript 70 pages

Criminal Procedure. Atty. Tranquil Salvador Lecture. 2010.

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Transcribed by Olay Dyosa Whisper your wishes to a butterfly and it will fly your wishes to Heaven. 1

CRIMINAL PROCEDURE Part1

2010 Lecture by Atty. Tranquil Salvador

Good afternoon, Good afternoon, this is just like a cinema. From the last time I was here, I think not last year but

the other year, there was no 2nd

floor, now theres already a 2nd

floor. I always welcome giving a lecture here in San

Sebastian College, because this is the first school where I taught. I started teaching in this school in 1993, and until

I became a Dean for a while in Pasay and proceeded to teach in other schools also. Now, I think I have the task of

discussing w u and hopefully you will not fall asleep, hopefully you will not fall asleep, I will discuss with u today,

Criminal Procedure. IS that right? Yes. I will discuss with you today criminal procedure. I would like to outline for

you the rules, and I will highlight to you pertinent jurisprudence on criminal procedure. How many rules do we

have? We have 18. Is that right? 18 rules? YES! We have 18 rules, starting with rule110 to rule127. Okay. So for

those of you who are to study with me for today we have 4 hours, is that right, and tomorrow we have also 4

hours, 5-9 and on saturday 830-1230. K?! Just sit there try to take as much as you can and hopefully at the end of

the 12 hours you get something from the session. Ah I dont want students, honestly, in my years of teaching now,

for almost 17 yrs, I dont want my studs leaving the classroom and say anu bang natutunan ko roon? ganun ang

estyudyante e, pag umuwi, ano bang natutunan ko roon? I cant remember anything!

So let me start with an item on jurisdiction. Of course when we talk of jurisdiction, you cannot avoid and take not

of REPUBLIC ACT 7691. This is simpler, amending BP 129, this is simpler if you compare with it to Civil Procedure.

This is simpler, why? You just have to remember the IMPRISONMENT PENALTY. If the penalty for the offense

exceeds 6years, it will be with the Regional Trial Court, regardless of FINE or ACCESSORY PENALTY. Again,

regardless of fine or accessory penalty. The penalty of the offense exceeding 6yrs = regional trial court; not

exceeding 6yrs, regardless of fine or accessory penalty, municipal trial court, municipal circuit trial or metropolitan

trial court. Do we need to distinguish whether it was committed in manila or outside of metro manila? Or outside

of manila as a chartered city, do u need to distinguish, for purposes of determining jurisdiction of courts, you dont

need to distinguish. The distinction arises when? FOR PURPOSES OF INSTITUTION OF ACTION which is in rule 110

section1. Are we clear? Okay. I hope thats clear. Thats the first item I would want you to remember.

Now, the next item that I would like you to take note on jurisdiction is this. Sir what if the penalty is PURELY A

FINE? Okay? What if the penalty is purely a fine? We will have to go back to circular 09-94. Sir bat parang ang

layo na yan? Thats in 1994. Because if you will recall RA 7691 was passed in 1994. And because the law was

incomplete, or inadequate or insufficient the Supreme Court had to explain that portion wherein what if the

penalty is purely a fine. You will jhave to remember the AMOUNT of 4000 pesos exceeding 4000 pesos the

penalty is a fine, it is the Regional Trial Court that has what? jurisdiction; not exceeding, what? 4000 pesos

municipal trial court, municipal circuit trial court, and metropolitan trial court. Again there is no distinction as to

manila, outside of Metro Manila. Are we clear? Now, the third item on juris I would like u to take note, is the most

basic, oft-repeated and most recently cited in the case of Manuel Icip vs. People, a June 26, 2007 case VENUE is

JURISDICTIONAL. Okay. Do u agree with me? Venue is jurisdictional. What do I mean by this? The place where the

crime was committed determines not only the venue of the action but is an essential element of jurisdiction. Let

me illustrate this. Can u hear me? Let me illustrate this. Unlike civil cases, where venue is what? Can be subject of?

agreement. Where venue can be subject of consent. Where venue could be subject of waiver. If you fail to raise an

objection even if the venue is what? Improperly laid, can the court acquire jurisdiction? YES, are we clear? in civil

cases, but in criminal cases, its a whole together different story. For a criminal case, venue is jurisdictional, in

simple words, where the crime was committed is the place where you could institute the action. Are we clear? The

stabbing took place in manila, in sampaloc manila. Where can u institute the action? In manila, not in quezon city.




Let us say, the stabbing took place in manila, the action was instituted in quezon city, the respondent or the

accused kept quiet about it. Is the court deemed to have acquired jurisdiction? NO! Because venue is jurisdictional.

Are we clear? Venue is jurisdictional. But before I leave this topic, I would like to highlight a point, stated in this

case: the jurisdiction of a court over the criminal case is determined by the allegations in the complaint or

information. I would like to be very clear with this. It does not mean that the allegations in the complaint or

information confers jurisdiction because it is only the LAW that confers jurisdiction. Are we clear? It is only the

law that confers jurisdiction, without the law there could be no jurisdiction, the court will have no power to hear,

try and decide the case. However, when jurisprudence says it is the allegations of the complaint that determines

jurisdiction, it means that you will have to what? ALLEGE it in the information. That is why if u will read an

information it says that the crime was committed within the jurisdiction of the city of manila in order to show

that the venue is in the place where the action was instituted. Are we clear? Ok. So let us not be confused with

that.

The next item on jurisdiction that I would like you to take note, would be, HOW IS JURISDICTION ACQUIRED OVER

THE PERSON OF THE ACCUSED?

Number 1: jurisdiction is acquired over the person of the accused by ARREST.

And number 2 by VOLUNTARY SURRENDER.

Now, let me lead you to another case, Landbank of the Phils v. Belisata, another 2007 case that answers this

question. Jurisdiction of the RTC as a SPECIAL agrarian court. E sir bat tayo umabot sa agrarian e criminal

procedure ito? I cited this case for this reason, this case says, that sec50 okay, sec 50 of the DAR Law says that the

DAR has Primary jurisdiction to determine and adjudicate agrarian reform matters, with an exception that the DAR

doesnt have original or exclusive jurisdiction over what? Determination of, just compensation, that is a JUDICIAL

FUNCTION. Number 2, and this is what you want to hear, ALL CRIMINAL OFFENSES UNDER RA 6657 ARE WITHIN

THE JURISDICTION OF THE RTC SITTING AS A SPECIAL AGRARIAN COURT. In simple words, all criminal cases or

offenses arising from violation of said law, ra6657 shall be instituted where? In the regional trial court acting as a

special agrarian court. Okay?

My next question on jurisdiction and venue would be this: Let us try to compare civil and criminal venue and

jurisdiction. Let me try to compare. When you talk of civil jurisdiction under civil procedure, that is found where?

In rule 4. That is found in rule4. And rule 4 tells you either, personal action or real action. Your venue in criminal

cases is what? Jurisdictional. And that is found in rule110, sec15 if I am accurate. Okay? Rule 110, sec15. Now, 15

or 16, give or take one number, one section. Now, in civil cases, rule 4 is only a rule of general application, meaning

it applies to ORDINARY CIVIL ACTIONS. I would want to be very clear with that ORDINARY CIVIL ACTIONS. Why

SIR? there are some special civil actions which provide for a special rule in venue, like? Quo warranto. Provides a

special rule in venue, where the respondent resides, RTC, or any of the respondents, you could also file it where?

In the CA or SC. Another example of special civil action that does not follow rule 4? Is what? Rule 70. Although

there is a provision in rule 4, touching on rule 70, what is that? ejectment cases are always with the MTC. Special

proceedings - do you follow rule 4? The answer is NO. ok? On adoption there is a different rule: where the

adopter resides. On habeas corpus where the writ will be enforced, the CA and SC have concurrent jurisdiction.

Gusto ko maliwanag yun. You set that aside. However, for criminal cases, you only follow what? venue is

Jurisdictional. Let me ask you this next question: Can we transfer the venue of trial? TRUE OR FALSE? Tinanong

sa bar, uso na ngayon ang true or false diba? True or False: the venue of trial can be transferred. The answer is:

The venue of trial subject to the approval of the SC can be transferred. Let me explain this, baka naman ilan lang




kaming nakakaintindi nito no.-siraulo! baka ilan lang kaming nakakaintindi kaya ipapaliwanag ko. sir bat ganun?

Sinabi nyo ulit kayo ng ulit, venue is jurisdictional, now youre telling us, that the venue of trial is wht? Can be

transferred? So sir youre wrong?! NO the constitution gives the SC the POWER to allow the transfer of trial to

another venue IF the lives of the witnesses will be endangered. If there will be a risk in the administration of

justice. The SC can transfer it. For better understanding, let me give you actual examples, do you follow? Because

for students, ah ganun ba? pag uwi nyan nakalimutan na! the most recent case of the MAGUINDANAO massacre.

Do u follow? The crime was committed where? In Maguindanao, tama ba ko? Hindi naman cotabato un,

maguindanao, it was committed in Maguindanao. E bat nasa quezon city na ngayon? Di nyo ba tinatanong un?

Okay na din yan, kasi wala namang nag oobject e, ganun naman sa atin e, kung saan ang agos OKAY. Can u follow?

Maguindanao massacre where is it being tried today?! who is the judge handling the case? A judge of QC. And why

was it transferred? 1. It was applied for in the SC, and in the interest of justice, allowed the transfer of the venue of

trial. The venue of trial is not the SAME as the venue for purposes of INSTITUTING THE ACTION. Can u follow?

Again, the venue of trial yes could be transferred is different from the venue for purposes of instituting the

action. Can u follow? What is that venue for purposes of instituting the action? Venue is jurisdictional.

Now, let me further explain this maguindanao massacre scenario.The crime was committed in maguindanao.

Where was the action instituted? In qc? If we follow the rule that venue is jurisdictional, that could only be

instituted where? In maguindanao.That is why inquest proceedings were conducted where? in maguinadanao.

Can u follow?U cannot do it elsewhere. Even if the SC allows it. Because venue is jurisdictional. You will have to file

it in maguindanao and once the information is, once you find probable cause, information is filed in court, the

venue of the trial can it be transferred? YES! The venue of trial can be transferred.

Now let us move on to another item. Which I think, the next few items class that I will discuss with you in the next

hour, or maybe in another 30-45 minutes will be, jurisdiction of the Sandigdanbayan. I noticed, let me call your

attention, I noticed that in 2005, there was a question on special prosecutor.hmm..narinig nyo ung special

prosecutor? Last year, there was another question on special prosecutor. However, more recently, you have to be

very careful with this, sir why? Because of the rules of procedure on? Environmental cases. Kaya lang hindi kasama

yan sa bar e binabanggit ko lang senyo, ok meron, which took effect in April sir buti na lang hindi kasama sa cut-

off! kaso mabuti alam nyo rin! baka mamaya may maglaro e what is the writ of kalikasan? ayan mga ganyan

haha..kailangan alam nyo yan, kaso hindi ko trabahoo kita nyo nagugulat kayo, HANAPIN nyo! It is a writ that you

could apply for, only the SC and the CA to be applied by the offended party any juridical entity or NGO to protect

what? an environment. Because there will be a what? An actual violation or a threatened violation of ecology or

environment, that is what you call writ ofbaka gelatin kayo e..kasi kami yung writ of amparo e, yung unang una?

Kami un! We were the first one! In 1991 the writ of amparo. Pag sinampolan kayo ng writ of kalikasan. Anu pang

meron? A continuing mandamus, merong ganun! Baka gulatin kayo, an application for a continuing mandamus,

today, ok? Soalso in that procedure let me just touch on this, para hindi kayo magugulat, kasi nasa dyaryo yan e!

anu pa? special prosecutor. There is a special prosecutor in that procedure on environmental cases. Who is a

special prosecutor? If u know, in criminal cases, the State is represented by who? The public prosecutor, correct?

And the offended party is represented by the private prosecutor, correct? But the law on environmental cases

understands that there are certain violations where there is no private offended party. Do u follow? So the counsel

in those cases when theres no private offended party wherein a person or a juridical entity named sa counsel is

what you call a special prosecutor. Ok? He is what you call a special prosecutor.

Now, to continue. Ok pa ba kayo? Baka naman tulugan nyo ko a? wag kayo matutulog, pati kung matutulog kayo

dilat pa rin kayo. Wag kayong matutulog. Now lets move on. Let us look at sandiganbayan. And I would like to

discuss the case of People v. SB an Aug 25 2009 case, GR 167304, ok. how would I want u to remember the




jurisdiction of SB? Jurisdiction of SB, number one, if the offender is at least salary grade 27, and the act was

committed in relation to the office.

Do u follow? Now lemme ask u this question therfor, does it mean that the acts or the violations or the offenses

committed for you to fall within the jurisdiction of SB are only those violations of the anti-graft law? RA 3019. RA

1379 or Title 7 or the RPC chapter II, including bribery. Do u follow? Are those limited to thos4e offenses? NO! can

there be offenses like murder, could there be offenses like grave threats that could fall within juris of SB? Huy,

ano? sir e kaya ka nga reviewer jan e, kaw magsalita, wag kami tanungin mo ok, the answer is? YES!!!! The courst

citing the case of Lacson v. Exec Sec, wherein the crime allegedly committed was MURDER! Citing the case of

Alarilla v. SB the crime allegedly committed by the Mayor was what? The crime of grave threats. Therefor, I would

like to be very clear. Whats the jurisdiction of SB? the offender is at least salary grade 27 and second the act was

committed in relation to the office. It is not required that the offenses are those only enumerated! Like 3019, anti

graft law, like ra 1379, NO! OTHER OFFENSES COULD ALSO BE included for as long as what? The crime was

committed in relation to the office. What does it mean? In relation to the office? Lemme read from the ruling of

the court this court ruled as long as the offense charged in the information is intimately connected with the office

and is alleged to have been perpetrated while the accused was in the performance though improper or irregular of

his official functions there being no personal motive to commit the crime and had the accused not have committed

it had he not held the aforesaid office. Sir ang haba niyan, hindi ko maaalala yan! Ito lang alalahanin nyo that

the office is a constitutive element of the offense that without the office the crime would not have been

committed! The Lacson case is the Kuratong-Baleleng case. They were saying that w/o the office, they would not

have what? Committed the murder. The Kuratong-baleleneg case. Do u follow? Without the office.

Now, lemme ask u this question, considering I mentioned the Lacson case. One of the contentions of then Gen.

Lacson was e hindi naman kami principal! do u follow? we were just what? We werent even there at the scene

of the crime, we could be accessories, we could be accomplices, therefore we will not fall within the jurisdiction of

the SB --IS HE CORRECT? And I will give u a case, another example of a recent case on that matter. But I will

answer it now, for as long as one is salary grade 27, regardless of whether he is a principal, accomplice or

accessory, u will be together with him in the Sandiganbayan. For as long as one is salary grade 27. Even if u are not

salary grade 27, u will be included. Or if you are a salary grade 27 and you are not a principal by direct participation

or by inducement u will fall within the jurisdiction of the SB. That is the rule. Now, can private individuals be

prosecuted before the SB? The answer is YES! Republic v. CA republic through the DPWH v. CA a 2003 case. The

scenario was there was a contract with the govt, with the DPWH. So there were contractors who dealt w/ the govt

for dredging of creeks and canals, u follow? Now, it later appeared that the contractor never really dredged the

creeks and canals. There was a contract, the govt has been paying but there was not actual implementation of the

contract. For this reason, who were sued? Were the officers of the DPWH sued? YES. Were the contractor who

were not public officers sued? YES! Does SB have jurisdiction over these private individuals? The answer is YES.

Now, lemme now proceed and discuss another case, the case of, baka kilala nyo pa to. Sirena v. SB a 2008 case.

The petitioner in this case is a UP Student Regent who claims that he or she is not a public officer, and therefore,

she will not fall within the jurisdiction of the Sandiganbayan. The SC in discussing who a public officer is said the

right to hold a public office under our political system is not a natural right, it exists solely by virtue of a law, of

some law, expressly or impliedly conferring it. She was also claiming, sandali po Im not receiving any

compensation, sabi nya hindi po ako tumatangaap ng sweldo, what did the SC say? It is well-established that

compensation is not an essential element of public office, at most, it is merely INCIDENT to the public office. So If

you are the type of person who will say no dont give me salary because IAM rich, just give me one pesoyou

are still a public officer. In this case, you have a student regent. Now, lemme now touch on her question Does the




SB have juris over her, considering that she is only a student regent? and she was saying well I am not a salary

grade 27 because as what we mentioned a while ago, the rule is: salary grade 27 and the act should have been in

relation to the office. Tandaan nyo yun a! tandaan nyo yun! E sir bat iba na to? Kaya nga pakinggan nyo to! Yung

sasabihin nito pag nagpe-perform, panoorin mo! Pakinggan nyo tong susunod importante ito! Geduspan v. People

cited in that case, in that case of Sirena v. SB, the SC said: we held that while the first part of Sec 4-A covers only

officials with salary grade 27 and higher, okay, my discussion a while ago, covers only 4-a, according to geduspan,

in second part, specifically includes other executive officials whose position may not be of salary grade 27 and

higher, but who are by express provision of law placed under the jurisdiction of the SB. Are we clear?! Therefore,

under that law, PD 1606, you will have to look at Sec 4-a that says u should be at least salary grade 27 or higher

and the action have been committed in relation to the office, u follow? Maliwanag un! And section b that makes

NO distinction, that makes no requirement that you should be salary grade 27. But who, according to this case, by

express provision of law, placed under the jurisdiction of the said court. Lemme now quote to you a portion of the

decision sec4-a 1g of PD 1606 explicitly vested the SB with jurisdiction over Presdents, Directors or Trustees or

Managers of GOCCs, State Universities or educational institutions or foundations ok?

Now still, moving on. Still with the Sandiganbayan. Naiinip na ba kayo? Wag kayong maiinip a. the next question is:

where a co-accused is within the jurisdiction of the Sandiganbayan. Esquivel v. Ombudsman, sabi nya ganito:

sandali po, I am a Municiapl Mayor, sabi nya! Municipal Mayor lang po ako, yung kasama ko, he is a brgy captain

ang galing e no?! Sabi nya walang jurisdiction ang Sandiganbayan sa amin because I am a municipal mayor and he

is a brgy captain ano sagot ng SC? as the positions of municipal mayors and bgy capts are not mentioned in the

law, they claimed they are not covered by the law under the principle of expressio unius est exclusio alterius.

However, the petitioners claim lacks merit. Why? In Rodrigo v. Sandiganbayan, Binay, si BInay! Binay v. SB and

Layus v. SB, the SC had already held that municipal mayors fall under original and exclusive jurisdiction of the SB.

Yan sabi nila. Ah ok. Now, ngayong na settle that the municipal mayors are w/in the jurisdiction of the SB. Andito

ung bgry captain sabi nya ah, di sya lang ho, hindi ako kasama sabi nya sya lang ho hindi ako kasama tama

ba sya? Is he correct? The answer is NO! ok? The answer is no? why? I think ive answered that a while ago, that for

as long as one falls within the jurisdiction of the SB, even if the other accused does not fall under salary grade 27,

Sandiganbayan still has jurisdiction.

Now still on jurisdiction, Im on jurisdiction ha class. The case of Mondejar v. BUban, baka gulatin kayo nito! Baka

yung examiner nyo naging Immigration lawyer. Which court can issue a Hold Departure Order? HDO. Which court?

Ok. Alam nyo class, ang ganda sanang discussion nito, kasi may bagong provision. Ang environmental cases, but I

dont want to confuse you. Because studentss sometimes have a tendency to remember the unneccessaries (sic).

Pag inulit ko, oh sinabi ni sir ganon, ay baka magkamali pa kayo. Dito na lang tayo, so what should u remember?

The authority to issue HDOs to criminal cases are limited only to criminal cases w/in the juris of the 2nd

LEVEL

COURTS, what do I mean by 2nd

-level courts? RTC. This is pursuant to circular 39-97. So the juris and that power to

issue HDOs is with the RTCs.

Now, lemme now touch on the case of Badiola v. CA. Lemme touch on Appellate Jurisdiction. Naalala nyo ba?

Nakita nyo ba yung examination last year? I dont want to haunt you no, but there was a question, I recall you will

have to tell the examiner when to file, where to file and what to file. 38. Remember? And one of the questions

then was, where do you go, I could still remember this, sabi ko pag hindi ito diniscuss ng professor hindi masasagot

ng estudyante, from a decision of the CTA Division, where will you go? EN banc only then can you go to the

Supreme Court on a petition for review on ceritiorari. O ang galing nyo a, daw?! Sagutin natin to. Badiola v. CA.

Where do u go from a decision of the CA? Regardless of whether it was decided by the CA in Division or En Banc,

can the CA render a decision En Banc? True or False? NO! Basic na basic yan a! WHY? Because the CA render a




decision in Divisions of 3! Ok, nagtatrabaho sa CA dito alam tong sinasabi ko, in divisions of 3, they do not render a

decision En Banc, they render a decision in divisions of 3, and where do you go from a decision of the CA? to the SC

on a petition for review on certiorari. I know my next point is something you already know, but I would like to

repeat it. A wrong mode of appeal will not vest, or give the court what? Appellate jurisdiction. This is found in Rule

56 Sec.5F okay? Ngayon, baka meron senyo nagrereact, sir parang hindi natin coverage yan? Bat nasa Rule 56?

Diba? Wag kayong mag alala paliliwanag ko sa inyo na kabit kabit yan, and when you end this class by Saturday I

will explain to you appeals in criminal cases, and when you go home you will realize that its basically the same.

Rule56 tels you if its a wrong mode in the SC whether civil or criminal, Rule 56 of the Rules of CIVPRO applies to

both civil and criminal! Oh sir ganun? OO! Buksan nyo sa rule125, makikita nyo. Ang ikli lang dyan isang paragraph,

why? Look at rule 124 last section, it makes reference to civil procedure and look at rule 45 last section that says

the only way to go up to the SC is via petition for review on certiorari whether in civil or criminal EXCEPT where the

penalty is DEATH LIFE OR RECLUSION PERPETUA. And my last point on this case, only In this case, is a SECOND

MOTION FOR RECONSIDERATION allowed? Ah sir maning mani naman yan! The answer is?! Is it allowed? Whether

in trial or appellate court? The answrr is NO! however this case of Badiola April23, 2008 GR 17069 says as a rule a

2nd

motion for reconsideration is not ALLOWEDE, class, CODAL YAN! CODAL YAN. As a rule, a 2nd

MR is not allowed,

you open to Rule 37 you will see that, you open to rule52 you will see that, a 2nd

MR is prohibited, except for

ordinarily persuasive reasons and ONLY AFTER an EXPRESS leave shall have first been obtained, OBTAINED!

Now, lemme now discuss a few items on Ombudsman. Ok to naman! Ombudsman naman tayo! So weve

discussed juris of courts, of the SB, now we will discuss jurisdiction of the OB. Alam nyo class magugulat kayo may

mga, may talagang mga lumalabas dyan, SB OB and I noticed in the last few years, they always see use as an

example in their facts, factual antecendent cases falling within the office of the SB. And if I can recall accurately

last years question, the special prosecutor amended the information. You remember that? AMENDED the

information! When allowed by the court, can he do that?! HE doesnt have authority to do that. Ok? Now let us

now proceed to the next case: the next case will answer the dismissal of a criminal charge, does it carry with it

dismissal of the administrative case? Tecson v. SB, does the dismissal of the criminal case, carry with it the

dismissal of the administrative case? Whats the answer? The answer is NO! A public officer could be civilly liable if

by reason of his act the govt or someone else suffered damages, civil damages, he could also be what? Criminally

liable based on a penal sanction and he could also be what? Administratively liable meaning he could be

removed suspended sanctioned or reprimanded. 4512. Now, so take note of that. My next question is this: what

is the power of the ombudsman? DOJ v. Liwag, a 2005 case, GR 149311 what is the power of the OB? And lemme

quote this for you to be accurate, it was granted, for this purpose it was granted more than the usual powers

given to the prosecutor take note of that. The power of the OB, it was granted more than the usual powers given

to the prosecutors. It was vested with power to investigate complaints against public office, or public officer on its

own initiative, ok on its own initiative. Do you need a formal complaint? w/o the formal complaint, can the OB

investigate? The answer is YES! Kahit nga isang pirasong papel sulatan mong ganun e, ireklamo mo e, even

anonymous if there is basis, they will entertain. Even in the absence of a formal complaint. What else? How about,

can it inquire into acts of govt agencies and public servants based on reports in the media and those which come

to its attention through sources other than a complaint. The answer is YES! so although generally, the OB perform

close to the function of a public prosecutor, that is what to investigate, to conduct prelim invest, but as worded by

the SC, it was granted more than the usual powers given to the prosecutor. Right? Because the prosecutors cannot

initiate on its own. The prosecutors cannot act if its not an affidavit-complaint unless of course it is what? An

inquest proceeding where you are caught in flagrante delicto or a hot pursuit situation. can u follow? You see now

the difference of an OB? Now. The method of filing a complaint accdg to the court with the OB is direct informal




speedy and inexpensive. Now lemme ask u this question, should a Public officer be committing an act in relation to

his office? So that the OB to have jurisdiction? Is it required that the act of the offender or the public officer is in

relation to the office for the OB to have jurisdiction? The answer is? NO! All that is required for the OB to have

jurisdiction is a misfeasance or malfeasance of a public officer. Therefore, so that you will remember, I need to give

examples, extreme examples, you are a police officer, wala kang magawa e, ano ka e, OFF wala kang duty, nilinis

mo yung baril mo, gusto mong praktisin kung ok na, nilinis mo e, binaril mo ung manok ng kapitbahay, can they sue

you before the OB? YES! Sabihin mo, im not on duty! regardless, thats not important! Nagpautang ka, ang

claim e estafa, nagkalokohan may estafa daw, pwede ba dalhin dun? Pwede! Ang hirap maging public officer class!

Any complaint against you can be brought before the OB, any misfeasance or malfeasance even if its not in relation

to the office. Is the office of the OB a COURT? The answer is NO! it is not a court. Naku naman sir madali, e ung iba

hindi alam e. it is not a court. It is an investigative body.

Now lemme now ask u this, which has primary jurisdiction to investigate cases cognizable by the SB? Ok im

extending my discussion. Which has primary jurisdiction to investigate cases falling or cognizable by the SB to the

exclusion of the DOJ. K. what did the Court say? In this case? OBs primary jurisdiction, still on DOJ v. Liwag, OBs

primary jurisdiction over cases cognizable by the SB and authorizes him to takeover at ANY STAGE from ANY

investigatory agency the investigation of such cases. THE OB is what you call PRIMARY jurisdiction for cases falling

w/in the juris of the SB. While, how bout ang DOJ sir? While the DOJ has general jurisdiction to conduct

preliminary investigation of cases involving VIOLATIONS OF THE RPC. Are we clear? Simplify. Lets simplify.

The OB has jurisdiction over cases cognizable by the SB, it has what you call primary jurisdiction. And it can

interfere, it can, what? take cognizance at any stage of the proceedings. Unlike the DOJ, the DOJ has what you call

general jurisdiction over investigation of cases involving violations of the RPC. Take note of this next statement,

this general jurisdiction cannot diminish the plenary power and primary jurisdiction of the OB to investigate

complaints specifically directed against public officers. Are we clear? To give you briefly the facts of this Liwag case,

5208 this involved the Oakwood Mutiny, ito yun! Bakit? natengga ng mahaba e, natengga ng mahaba sa OB, ang

tagal! Gustong pasukan ng DOJ, sabi nila we will form our own panel that will hear the charges against those

participants in the Oakwood Mutiny so you have th OB and the DOJ having its own panel. Yan ang tanong! Anong

sabi ng SC? Ay sandali, the OB is what you call PRIMARY JURISDICTION. The DOJs only what you call only general

jurisdiction and this cannot diminish the plenary power of the OB. Now, another case, ito na, Lazatin v. Desierto

June 5, 2009, GR 147097. Office of what? Office of the SPECIAL PROSECUTOR. Is this office the same as the office

of the Ombudsman? For those of you who are aware of the history of the office of the special prosecutor, this is

formerly the TANODBAYAN. Wala na tayong tanodbayan ngayon. What did SC say, is it on the same level with ON,

the Office of the Special Prosecutor is merely a component of the Office of the OB. And may only act under the

supervision and control and upon authority of the OB can you follow? It cannot supersede, it cannot superimpose

what it wants, it works under the Office of the OB, it is subordinate to the OB. The SC citing the case of Perez v. SB

said that the power to prosecute carries with it the power to authorize the of filing informations (sic) which power

had not been delegated to the Office of Special Prosecutor. Do you follow? Again, the power to prosecute carries

with it the power to authorize the filing of information. And that is the power of the OB which power had not been

delegated to the Office of the Special Prosecutor. Are we clear? Now, where do you go, baka inaantok na kayo a?

Where do you go from a decision of the OB? In administrative cases where do you go? Where? Ok? From a

decision of the OB? But before I answer that question let me give you the case of Buencamino v. CA, an April 17

2007 case, orders or decision of the OB in administrative cases, imposing penalties of public censure, reprimand or

suspension of not more than 1 month or a fine not equivalent to 1 month salary, shall be final and unappealable

and immediately executory. I will repeat: orders or decision of the OB in administrative cases, imposing penalties




of public censure, reprimand or suspension of not more than 1 month or a fine not equivalent to 1 month salary,

shall be final and unappealable and immediately executory. So itong mga to, hindi mo iaappeal u follow? So my

next discussion point is where do you go from a decision of the OB? Of course not including the reprimand, the

censure, where do you go? Rule 43!!! Petition for Review, you go on a Rule 43 on a pet for review Enemesio v. CA,

lumabas na sa bar yan, k? however, if its tainted with grave abuse of discretion amounting to lack of jurisdiction in

criminal cases, you could go where? To the SC on a petition for certiorari. And citing the case of Antonino v.

Desierto Dec 18 2008, Rule 65 is not the GENERAL RULE, petition for certiorari questioning a decision of the OB is

not a general rule, but rather an EXCEPTION. And under what circumstances, and let me enumerate to you cited in

the case of Antonino, referring to the case of Collantes v. Marcello, they laid down the ff exceptions:

1. When necessary to afford adequate protection to the constitutional right of the accused;

2. When the necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions;

3. When there is a prejudicial question that is subjudice;

4. When the acts of the officer are w/o or in excess of authority;

5. The prosecution is under an invalid law ordinance or regulation;

6. When double jeopardy is clearly apparent;

7. When the court has no jurisdiction over the offense;

8. Where it is a case of persecution rather than prosecution.

9. When the charges are manifestly false 5900 and motivated by vengeance; and

10. finally when there is clearly no prima facie case against the accused.

Lemme now proceed, I think this is a good discussion point Sesbreno v. Aglugog, though its a 2005 case, I felt it

necessary to cite it for you. It says that all prosecutors are deputized by the Ombudsman, Im now deputized by the

OB, the resolutions and these are the steps Id like you to take note, resolutions in OB cases against public officers

by a deputized public prosecutor shall be submitted to whom? To a provincial or city prosecutor. Lemme explain

again, if this is the deputized public prosecutor, he conducts preliminary investigation his resolution shall be

reviewed and approved by whom? the city or provincial prosecutor. Is it enough? if u read rule112, it is enough. Do

u follow? An information could already be filed. But if you talk of the work of an OB, you have a deputized public

prosecutor then you have what? A city or provincial prosecutor, should it be reviewed by the OB? Yes by the

Deputy OB of the Area.

Kaantok! Its already 6am, I need to go lie down and catch some dreams

Yes by the Deputy OB of the area and his recommendation shall what? Subject to the final approval of the OB. U

follow? So u add a number of steps, ordinarily when theres a Preliminary Investigation, you have an asstant

prosecutor, city or provincial prosecutor correct? If you find probable cause, information is filed. When you find

cases falling w/in the juris of the OB, if it is a deputized prosec, it will be reviewed by the city/prov prosec and then

it will be subhmitted to the Deputy OB of the area and subject to the final approval oif the OB. The cases of

Sesbreno v. Aglugo.




Can the office of the OB dismiss a case outright? Yan. Can it dismiss a case outright? Naalala ko yung tanong na to,

may tinanong close to this no, in 2008 if not, I think 2008 if not 2007. The question was: can the court dismiss a

motion for bill of particulars outright? yun oh. Naalala niyo un? Whats the answer? You dont need to go to

jurisprudence, its sec2 of Rule 12, YES. The court can dismiss a Bill of Particulars outright. My question now is this:

Can the OB dismiss a complaint outright? the SC said: Presidential ad hoc fact-finding committee v. Desierto July

24,2007, it said it is clear under sec2A, Rule 2 of the Rules of Procedure of the Office of the OB, that it may dismiss

a complaint outright. For what ground? FOR PALPABLE MERIT. Again, for WANT of palpable merit it can be

dismissed outright.

Lemme now move on to another case, Punzalan v. Dela Pena. Wag kayong maiinip, malapit na ko sa Rule 110.

Sinusuyod ko lang to e. ok. Wag kayong mag alala, tapos natin yan sa Sabado. Sir hindi e, matatapos natin yan, sa

pre-week nga e dalawang oras lang yan. Sir hindi tayo pre-week, e hindi nga, so I need to discuss this in more

detail. Sa pre-week 2 oras lang yan, ung 18 rules, we need to highlight, we will highlight, but during pre-week I do

not go into discussion of as much cases, I will highlight the doctrine of the cases.

Now, let us now move on to the next case. The case of Punzalan v. Dela Pena, k. the Sec of Justice exercises power

of direct control and supervision over decisions or resolutions of prosecutors. It is w/in the purview of the function

of the DOJ. What do I want you to remember here? It is the Sec of Justice that exercises power of DIRECT

CCONTROL AND SUPERVISION over the decisions or resolutions of the prosecutor. So that you will NOT forget this,

I will give you an example of SECRETARY AGRA. He exercised what?! POWER OF CONTROL! As to the nature of his

decision, I dont want to discuss it, okay. I would like to zero in on his power of control and supervision over

resolutions of the prosecutors. Yan yun o! kita nyo may power sya? But if he exercised it w/in the ambits of proper

of discretion, ay hindi ko na yun, juzgado magsasabi nun. U follow? It is w/in The Sec of Justice exercises power of

direct control and supervision of prosecutors. Now CAN A PROSECUTOR BE COMPELLED TO INSTITUTE or TO FILE

AN INFORMATION IN COURT EVEN IF HE BELIEVES THERE IS NO PROBABLE CAUSE? Can he be compelled by

mandamus? Hagerty v. CA, cited in this case of Punzalan: WE declared, a public prosecutor, by the nature of his

office, IS UNDER NO COMPULSION to file an Information, where there is no clear justification that there is a case or

there is a crime that was committed. Now lemme now move on, and discuss the case of Castro v. Veloria, a 2009

case, Jan 27 2009, can the OB prosecute cases w/in the jurisdiction of regular courts? Ha? O dapat bay an e Public

Prosecutor lang? under the city and the provinces, this could be in a Fact question. What is the answer? The

answer is: YES! Ok? Sec.15 of RA 6770 gives the OB primary jurisdiction over cases cognizable by the SB, Sir you

said SB, listen! The grant of this authority does not necessarily imply the exclusion from its jurisdiction of cases

involving public officers, employees cognizable by other courts. So if it is public officers, and it was before the OB

can the OB still prosecute? the answer is YES, it is not excluded. It must be stressed according to the SC, that the

powers granted by the Legislature to the OB are very broad and encompasses of all kinds of malfeasance,

misfeasance and nonfeasance, ok? And I think my last point before I start w/Rule 110 would be this: WHO

REPRESENTS the People in the Supreme Court and Court of Appeals? WHO REPRESENTS THE PEOPLE OR THE STATE

IN THE SC OR CA? This is the case of People v. Duka Oct 9 2009 citing the ruling case of City Fiscal of Tacloban v.

Espina, and what did the Court say? COMPLAINT OF INFORMATION IN THE TRIAL COURTRTC and MTC shall be

under the control and direction of the prosecutor! Tandaan nyo yan! MTC RTC prosecution is undet the direct

control and direction and supervision of who?! The public prosecutor and that is consistent with Rule 110, Sec5,

naalala nyo yan? Tignan nyo yan. The first paragraph: direction and control of criminal cases shall be with the

public prosecutor. However, still in this case of People v. DUka, the SC said: When such criminal actions are

brought to the CA or the SC, it is the SOLICITOR GENERAL who must represent the People of the Philippines, and




Section 1. Institution of criminal actions. Criminal actions shall be instituted as follows:

(a) For offenses where a preliminary investigation is required pursuant to Section 1 of Rule 112, by filing the complaint with the proper officer for the purpose of conducting the requisite preliminary investigation. (b) For all other offenses, by filing the complaint or information directly with the Municipal Trial Courts and Municipal Circuit Trial Courts, or the complaint with the office of the prosecutor. In Manila and other chartered cities, the complaint shall be filed with the office of the prosecutor unless otherwise provided in their charters.

The institution of the criminal action shall interrupt the running period of prescription of the offense charged unless otherwise provided in special laws.

NOT the prosecutor. AGAIN: when it reaches the SC or the CA, it is the Office of the Solicitor General and not the

Prosecutor that represents the People or the State.

Now, lemme dig deeper into this case. The question in this case was: Was the petition, should the petition

stand? Why? A copy of the petition was served upon the prosecutor! Was served before the prosecutor. And the

case was already pending in th SC, or even the CA. Should the petition be served to the prosecutor? NO! therefore

the SC said, it was w/ grave abuseo of discretion that the petition was even entertained by the CA. WHY? Because

the petition should have been served to the OFFICE OF THE SOLICITO GENERAL. Okay? Di pa tayo magbe-break a.

di pa ko magbe-break. But I will now touch on, oh iano nyo na, ia, tune niyo na yung utak nyo. We will now touch

on Rule 110. (whew!)

RULE 110

I will now touch on Rule 110, sir military courts? Hindi kasama yun. Matagal ng hindi kasama yun, haha, panahon ni

Marcos kasama yun, pero ngayon hindi na kasama. Now, let us now touch on Rule 110. I will outline to you the

rules and I will cite to you certain jurisprudence for better understanding. 11116 But class, for you to have a good

grasp of criminal procedure, as you study, or as you review, you should know the rule. Pag ang ginawa nyo class,

nagbasa basa lang kayo, hindi nyo binasa yung batas, delikado yun, ok? If you are the type of the person who feels

secured by reading notes only, W/O READING THE LAW, thats very dangerous, you will have to read the LAW. K?

Lemme now start with Rule 110, Sec.1.

What about rule 110, sec1? How may paragraphs do you have?

Do we have 3? 3 or 4? 3? Tama ba? Tatlo no? right! Let us look at

this. What should you remember? I will simplify it for you. Where

will you institute an action? Where will you institute an action?

Lets simplify it. So that when you go home ay ganun lang pala

yun! If the crime is committed in a CHARTERED CITY LIKE

MANILA, where can you institute the action? Do you need to

distinguish whether there is a need to go through a preliminary investigation do u need to distinguish? Thats right!

You dont need to distinguish, nakita ko may mga alam yung sagot e. may mga estyudanteng alam ang sagot.

Andito ka sa Maynila, this is a chartered city, Makati is a chartered city, Caloocan, u follow? San mo ifa-file? Ke

maliit, ke malaking kaso, san ang file? PISKALYA! MAliwanag?! YUN LANG UN! Thats all you need to remember. So

you look at the facts. That explains the FIRST PARAGRAPH. Are we clear? Kahit na ganyan kaliit, oral defamation,

slander by deed, do u follow? Sir, it does not require preliminary investigation! In fact, it might fall under the rule

on summary procedure! E un na nga e, where will you file? PISKALYA! Edi sir mag pi- PI din? HINDI! Paliliwanag

ko senyo, hindi mag pi-PI yan, e sir bat mo finile sa piskalya?! HINDI NGA MAG pi-PI (pi-ay = preliminary

investigation ) yan! Paliliwanag ko senyo, yun ang una kong gustong tandaan nyo, are we clear? If the crime is

committed here, regardless of the GRAVITY of the offense where will you file? OFFICE OF THE PROSECUTOR, are

we clear? Maliban lang un kung inquest. We will discuss that later on. Baka may pipilosopo, e sir paano yung

inquest? Ibang usapan yun.

Now let us look, at class, if the crime was committed OUTSIDE of the chartered city or in the provinces ok? Do we

need to distinguish? OH YES! We need to distinguish. U follow? If the crime or the offense was committed where?

OUTSIDE of a chartered city or in the provinces, you need to distinguish k? why? Whether it would require prelim




investigation or not. Are we clear? w/n it would require prelim investigation, sir why? Lemme ask u this question.

Baka sampolan kayo. Angtagal na nito, 2005 pang amendment to ha, pag hindi nyo pa alam to! Aba e delikado.

Sabagay hindi pa naman pre-week so maaral nyo pa no? CAN A MUNICIPAL TRIAL COURT JUDGE conduct prelim

investigation? O kita nyo may gumaganun? Yes daw, haha, baka lumang libro binabasa nya! NO!!!! a municipal trial

court judge TODAY CAN NOT CONDUCT PRELIMINARY INVESTIGATION. Cge nga buklatin nyo. Sir san ko

bubuklaten? Sa rule! Rule 112, sec.2! tignan nyo nga kung andun pa sya?! As to who can conduct preliminary

investigation. Tignan naten. (silence) O?? Sir nandito pa! sinong meron? Taas nyo nga kamay? Abay luma yang

libro mo! Hahaha! Tignan mo yung likod (merciful ) ok, burahin mo na ngayon yan! Baka yan pa ang maging

dahilan! Tignan nyo may mga nakakita pa sa inyo! (drinks water) pag andun pa sya, as of Aug 2005, WALA NA YAN!

A municipal trial court judge can NO longer conduct preliminary investigation.

My next question is this: Can a Metropolitan Trial Court judge conduct a preliminary investigation? Aba sir,

maibang tanong yan a, haha, sir ibang tanong yan a. parang ngayon ko lang na-encounter yang tanong nay an.

W/more reason HINDI! Its provided for in BP 129! In the original provision, even before the amendment, can you

follow? Sir bakit ganun? Because Metropolitan Trial Court judges are only stationed in chartered cities.

Naintindihan nyo na?! so hindi, lahat ng kaso sabi ko kanina will be filed where? Office of the prosecutor, are we

clear? I will repeat: outside of a chartered city, or in the provinces, a municipal trial court judge can no longer

conduct preliminary investigation, therefore, if there is an offense, you will have to ask yourself: Is the penalty for

the offense at least 4years, 2months and 1day? un ang tanong. Is it at least 4years, 2months and 1day? Bakit?

Because if its at least 4years, 2months and 1day, it should go through preliminary investigation. Ok?

Let us say, the offense was for homicide. It was committed in the province. Where will you file? Can you file before

the MunTC? NO! because the MunTC judge can no longer conduct preliminary investigation. Can you file before

the provincial prosecutor or the public prosecutor in the provincial office? YES! Because only a prosecutor can

conduct preliminary investigation and that would include the OFFICE of the OB. The MunTC judge can no longer

conduct preliminary investigation. Now if the penalty for the offense is below 4years, 2months and 1day, again, if

the penalty is below 4years, 2months and 1day, where can you institute the action? Can you institute the action

directly with the MunTC? YES! Why? Because it does not require preliminary investigation. And for that reason, it

can be instituted directly with the MunTC. Now, if the offense carries a penalty again, below 4years, 2months and

1day, can you still file before the Office of the Prosecutor? No ones preventing you from doing it.

You have now 2 ways to do it: If it does not require preliminary investigation and the crime was committed outside

of a chartered city and in the provinces, you could either 1.go to the MunTC judge on a direct filing, or you can go

where? 2. Office of the Prosecutor.

Later on class, I will discuss the difference. Sir bat parang pareho lang? e bat puro piskal? U follow? I will discuss

the distinction later on. Lemme now discuss, I hope this is clear so far. Prescription. Ok? Sir meron prescription? Oo

yung last paragraph nyo, prescription. Kung ngayon mo lang nadiscover, tandaan mo haha,malamng hindi mo

nabasa nung estyudante ka! ay oo nga ano? Prescription merong provision ang prescription. The prescriptive

period is tolled or interrupted when? This is a good question. Thats been asked for more than 5 years now. How

will it be interrupted. Will it be interrupted from the filing of the complaint in the office of the prosecutor? Or in

the what? In court? Okay. We will have to answer that question. Before I give you the case of Panaguiton v. DOJ,

Nov 25 2008, let me give you a general framework of how this goes. For ordinary offenses, falling under the RPC, if

you file before the Office of the Prosecutor its enough. For special laws, because of Act 3326, ok, 3326, kita nyo

act pa ito a, act this is a 1926 law ok? Because of this Act, it should be, because its a special law, where? IN COURT.

Owkay? In court. However, thats why for those of you interested, you can read the panagiton case in its original,




SEC. 5. Who must prosecute criminal actions. All criminal actions commenced by a complaint or information shall be prosecuted under the direction and control of the prosecutor. However, in Municipal Trial Courts or Municipal Circuit Trial Courts when the prosecutor assigned thereto or to the case is not available, the offended party, any peace officer, or public officer charged with the enforcement of the law violated may prosecute the case. This authority shall cease upon actual intervention of the prosecutor or upon elevation of the case to the Regional Trial Court. The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse. The offended party cannot institute criminal prosecution without including the guilty parties, if both are alive, nor, in any case, if the offended party has consented to the offense or pardoned the offenders. The offenses of seduction, abduction and acts of lasciviousness shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents or guardian, nor, in any case, if the offender has been expressly pardoned by any of them. If the offended party dies or becomes incapacitated before she can file the complaint, and she has no known parents, grandparents or guardian, the State shall initiate the criminal action in her behalf. The offended party, even if a minor, has the right to initiate the prosecution of the offenses of seduction, abduction and acts of lasciviousness independently of her parents, grandparents, or guardian, unless she is incompetent or incapable of doing so. Where the offended party, who is a minor, fails to file the complaint, her parents, grandparents, or guardian may file the same. The right to file the action granted to parents, grandparents, or guardian shall be exclusive of all other persons and shall be exercised successively in the order herein provided, except as stated in the preceding para graph. No criminal action for defamation which consists in the imputation of any of the offenses mentioned above shall be brought except at the instance of and upon complaint filed by the offended party. (5a) The prosecution for violation of special laws shall be governed by the provisions thereof, (n)

why? Because the case gave the historical perspective of the application of Act 3326, because this through time,

through decades had raised the question. And you will see repeated cases starting from Phil Reports, thats its

FILING IN COURT. And it is now that they had to revisit it. In this case of Panaguiton, its a case involving BP 22,

take not, BP 22, so pwedeng itanong to simple e. BP 22, where the penalty is not less than 30 days or not more

than 1 year, because it is a special law, we expected it to fall under Act 3326, k? this is the question presented

before the Court: Does it toll the prescriptive period once the complaint was filed before the Office of the

Prosecutor? the SC said YES! And the SC said: we rule and so hold that the offense has not yet prescribed.

Petitioners filing of his complaint-affidavit before the office of the city prosecutor in 1995 signified the

commencement of the proceedings for the prosecution of the accused and thus, effectively ibnterrupted the

prescriptive period for the offenses they have been charged under BP 22 tandaan nyo un. Because if you follow

the basic rule Act 3326, it should be filing in court. But this case said that once it was filed before the office of the

prosecutor, it interrupted the period. Let me also call your attention, this was the basis, the next discussion points,

were the basis of Panaguiton, the case of Inco v. SB and the case of San Rio Company Ltd v. Lim. In the case of Inco

what was involved was an anti-graft, violation of the latter which is a special law. RA 3019. While in the case of San

Rio, it involved what? Violation of the Intellectual Property Code. Ok. What did the SC say? The SC said citing the

case of Interport, SEC v. Interport, the Court ruled that the nature and purpose of an investigation conducted by

the SEC on violation of the Revised Securities Act another special law is equivalent to the preliminary

investigation conducted by the DOJ in criminal cases. And thus, effectively interrupts the prescriptive period. I will

repeat, in touching on Inco v. SB and San rio company v. Lim, touching on special law, one is anti-graft the other

one is violation of IP code, in ruling that the filing before the office of the prosecutor interrupts the running period

of the prescriptive period, they cited the case of INterport, SEC v. Interport. Wherein once the case was filed

before the SEX for violation of the Revised Securities Act, the SC said that equates to a preliminary investigation,

therefore, the running of the prescriptive period is what? Interrupted. So please, take note of that! I had to discuss

this matter with you.

The next case that I would like to touch on is the case of Brillantes v. Republic, that only reiterated the rule: that

for purposes of ordinary offenses, once the complaint or affidavit-

complaint is filed before the office of the prosecutor, the

prescriptive period is? INTERRUPTED. Now, let me now touch on

ok, let me now touch on another item. I hope that its clear to us.

K. let me touch on control and supervision of a prosecutor. K.

control and supervision of the prosecutor. And that is Rule 110,

sec5.

First paragraph, who has control in the conduct of a prosecution

of a criminal case? It is the public prosecutor. What does control

mean? What does it mean?

Does it mean that the prosecutor can stop the private prosecutor

at any point in the conduct of the trial? Can the public prosecutor

do that? YES! The public prosecutor can stop the private, he can

intervene because he is in control of the conduct of the criminal

case. That is the power of the public prosecutor. And kindly take

not of the duties of a public prosecutor. What are the duties of a

public prosecutor?




SEC. 16. Intervention of the offended party in criminal action.Where the civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule 111, the offended party may intervene by counsel in the prosecution of the offense.

Number 1: can conduct preliminary investigation. For cases filed before their office. The public prosecutor can

conduct preliminary investigation. What else? The public prosecutor can, what? Will be in charge or will have

control over a prosecution of the case. And number 3, if a public prosecutor if assigned, by the city or provincial

prosecutor, can conduct, inquest proceedings. Can conduct inquest proceedings. I will discuss inquest proceedings

later on.

Let me now call your attention to the case of Chua v. Padillo, a 2007 case, what is the rule? The power of the public

prosecutor to exercise discretionary power is not absolute. It is subject to what? To appeal to the DOH (nagkamali

si sir ). Bat napunta tayo sa DOH? Haha, kita nyo kung di ko pa sinabi, di nyo narinig, DOJ not DOH. The decision

of the provincial or the city prosecutor, could it be questioned before the DOJ? YES! What is the mode? What is the

mode of appeal? Yan, sir, edi appeal yan! What is the mode of appeal? You file a petition for? REVIEW! That is

under Circular 70 of the DOJ. That is under Circular 70 of the DOJ and you have how many days to elevate it to the

DOJ? 15 days from receipt of resolution or denial of a Motion for Reconsideration. What is the second exception?

The CA may review the decision of the DOJ under a Rule 65, under a rule 65 on the premise that it was what?

Tainted with grave abuse of discretion amounting to lack or excess of jurisdiction. So again, the rule is: whats the

rule? POWER OF THE PROSECUTOR TO EXERCISE DISCRETIONARY POWER IS NOT ABSOLUTE. It is subject to review

by the DOJ and the DOJ decision is subject to review by the CA on a rule 65 if its tainted with grave abuse of

discretion amounting to lack or excess of jurisdiction. From the DOJ can you go to the Office of the President?

Haha yun yung sinasabi nila no? Is it, you remember the events just recently? From the DOJ walang kibo ang ano,

naku, naka tv pa naman ako ok, diba sabi, diba pinipilit, the president should do something about it! Para naman

pag nakipag-discuss kayo may substance hindi yung kasi sinabi niya Can the decision/resolution of the DOJ be

elevated to the Office of the President? The answer is YES! Sir anung basis? Wala sa Law un! It was a Circular

passed during the time of Corazon Aquino. That if the penalty for the offense is Death, Life, Reclusion Perpetua,

you could go up to the Office of the President. Only in those instances can you go up to the Office of the

President. Ok. So tatlo lang yun! Death life reclusion perpetua. Kaya kung ang mga kaso mo e grave threats I

would like to go to the Office of the President! NO you can not! U follow? This is an ideal question that could be

reviewed by the President because it involves what? Of course we do not have Death today, Life and? Reclusion

Perpetua. Awkay?

Now, let us now move on and discuss k, im not yet through with sec5. Class, we tend to remember sec5 only

because of control and direction or supervision of the criminal case by a prosecutor. We tend to remember it but

we should not forget this EXCEPTION: CAN A PRIVATE PROSECUTOR proceed with the trial of the case even in the

absence of a public prosecutor? Ayan! Pwede ba? O? what is the rule? NO! the rule is NO! yun ang rule. Subukan

nyo yan pag abogado na kayo, abogado ang public prosecutor, di reset! Reset un! If Im the counsel for the

accused, aba okay reset na naman! Ganun un! If the public prosecutor is absent, reset. However, you could obtain

a certification from the Chief of the PRosecutio Office or the Regional State Prosecutor or the Regional Posecutor

to allow the private prosecutor to proceed even in the absence of a public prosecutor. If you do not have the

certification or authority to proceed, independent of the public prosecutor, sorry! Your case will simply be what?

Rescheduled. Ganun un! sir violation of speedy trial! sandali we will discuss that, rule 119. Ok? So take note of

that, you need a certification to proceed without a public prosecutor. Let me ask you this question: Is there

intervention in a criminal case? O sir, o kita nyo? Is there intervention in a criminal case? Buksan nyo kaya yung last

section of rule 110, is there intervention? MERON? When a private prosecutor enters his appearance for the civil

liability of the offended party, that is the concept of INTERVENTION in a criminal case. U follow? So pag tinanong

kayo, para hindi kayo magugulat. O subukan natin yung galing

nyo sa rule 19 sir ano un? Intervention, un talaga intervention.




SEC. 6. Sufficiency of complaint or information.A complaint or information is sufficient if it states the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed. When an offense is committed by more than one person, all of them shall be included in the complaint or information.

Let me do some exercises on intervention. Where could you file a motion for intervention? Can you file it before

the appellate court? Ok. Class, yung mga ganitong discussion, this is a point of advice, try to get it even if you

sometimes feel, naku baka hindi naman itanong. Wag kayong mag decide kung ano itatanong at hindi! Di naman

kayo examiner e. ay hindi, hindi important yan, kaya pala ang bilis mo magbasa, lahat not important (laughter) this

is not important. Ok? A puro not important e talagang mabilis ka magbasa! Sir nakakatatlong reading na ko, kasi

puro not important e! believe me, in the 2008 bar exams, I recall, I was, I discussed this in one of the reviews but

not here, because it was a topic of civil procedure, the question was, can you have original cases filed in the CA?

ordinarily you will not read it, yes! Certiorari prohibitiom mandamus quo warranto petition for writ of amparo,

habeas data, you follow? Habeas corpus on custody of minors. Biro mo un, hiningan ng enumeration! San mo

kukunin yun? Ay sir, kasi sinabi mo not important, ayan! pATAY! So lahat sa atin important, kay now, lets move on.

So I hope thats very clear to us. O not yet? Ive not yet answered the question, can you file a Motion for

Intervention in the CA or SC? YES! But only subject to the discretion of the appellate court. So nasasakanila yan to

entertain it or not, theres no express provision in the law allowing you to file a motion for intervention, and for this

reason, you will have to seek LEAVE OF COURT. Wala e. class kahit na alam nyo yung galagudin? Kahit na suyurin

nyo yan, 46 to 56 wala kayong makikita nyan! However, there is a provision for trial courts, for trial courts, can you

file a motion for intervention in civil cases? Yes! Thats in rule 19! Cited in the case in Gingoyon v. Republic, sec2 of

your rule19, when can you intervene? At any time before rendition of judgment in the trial court- yon express yon!

Sec 2 of rule19! At any time before the court renders a judgment in the trial court. So were clear with that. Now

let us also as a general rule now, im still on who can institute the action. Who? Im done with where, my next

question is who? Can institute the action? Can the offended party institute the action? Yes! Can a peace officer

institute the action? Yes! Can a police officer institute the action? Yes! A person charged with the enforcement of

the law can institute the action for as long as the offense is a PUBLIC OFFENSE. Syempre kung private yan papano?

Hindi sila pwede, the offended party (lang). U follow? If its a public offense, the answer is yes, but if its a private

offense, rape, is rape a private offense today? NO! A police officer institutes the action, the offended party need

not be the one but she can if she wants, ok now. How about adultery and concubinage? Who can institute the

action? Only the offended party. Yan. Parang alam na alam nyo to, sumasagot kayo e no. only the offended party.

Alam ko ang estyudante pag alam e! yan. Offended party. Do you need to implead even the partner? The

paramour? Yes! Unless he is DEAD. Ok? Ok unless he is dead. Now if its seduction, abduction, and acts of

lasciviousness, who can institute the action? The offended party, the parents, the grandparents, the guardian

successive and exclusive. Can the minor on her own institute the action? YES! And this was a part of the

amendment on the Rules of the Criminal Procedure because of so many cases involving ascendants violating

children or their descendants. That is why the law provided for a window where only the minor can institute the

action, if the minor is incapacitated, who can institute for the minor if it was the ascendant who violated the child?

The STATE CAN INSTITUTE THE ACTION for the minor.

Now, let us now look at sufficiency of Information. Class this is important. Sufficiency of information is in sec6. If I

were you, I will what? Memorize! Kung ako sa inyo abay memoryahin ko yan. sir mahaba, sang paragraph,

mahaba! haha, kung ako sa inyo, sir bat nyo pinamememorize yan? For reasons that your sec7 to sec12 is just

what? A discussion of your section 6. Your sec7- sec 12 are sections simply discussing what was enumerated in

sec6, sufficiency of information.

Whats the first requirement? The name of the accused. Should

the accused be named? Of course! If his name is known. Of

course his full name should be indicated, if his name is not known,




an appellation or nickname would suffice. If his name is not known, a statement that his name is not known will

likewise be accepted, of course the most common example of this is the John Doe, Jane Doe, accused. K. what are

examples of appellations? Of course the name, ayan, o kita nyo alam nyo, yung mga ganyang kalokohan alam nyo!

Anu yang mga what appellations can you have? And sometimes they are more known by their appellations rather

than by their real name. yung mga jeep barker, tricyle barker, Boy Taga Boy SIngkit these are what? These are

not nicknames, these could be appellations, but is that is his nickname that could also be used. So these are

examples. That is why if its presented in a case, a.k.a also known as. Ok.

The next item that I would like to call your attention on, is the date of commission. The case of People v. Ibanez, a

2007 case, lets do some exercises and tell me if the date is properly alleged.

Sometime in the month of April of 1998 is that enough? YES.

On or about May 1998 YES.

On or about 2004- NO. because its so, the possibilities are so huge. It could be 2001, 99, 2002, it could be 2008,

or 2009, u follow? So there should be SOME LIMITATION. Now my next question is in the case of Ibanez : should

the prcised date of the commission of the Rape be alleged in the Information? should the EXACT DATE of the

commission of rape be alleged in the Information? What is the answer? NO! why?? Because the date of

commission is NOT A MATERIAL ELEMENT OF THE OFFENSE. The rule that the law requires is simply an

APPROXIMATION of the date of its commission unless the date is a MATERIAL ELEMENT of the offense. U follow?

Like? Infanticide! Election offenses malapit na! liquor ban, iinom inom ka dun sa harap nila, ordinarily that is not

unlawful but the date of commission is material element of the offense. Now, are we clear? What is your remedy

for an INSUFFICIENT INFORMATION? You could file, 1. A motion for Bill of Particulars. Do you have this motion in

criminal cases? YES that is found in Rule 116 Sec9. But of course, if you, I am the lawyer of that case, I will not file a

motion for a bill of particulars, do u agree with me? Why will I file? Why will I teach you how to do it? If for your

purposes and for easy recollection, theres Bill of Particulars in civil cases, in Rule 12, in criminal cases Rule 116.

Does it work the same way? YES. Why? All you need to allege is you have to identify the defects and number 2 the

details desired. In civil cases, before an answer, in criminal cases before arraignment, u follow? Sir bakit before

arraignment? Edi bago ka basahan? Why will you teach them? Prosecution mali yan, dapat yung element ganito

yan kulang kayo ng place of commission, dapat you should indicate the place will you do that?! NO! but of course

for academic purposes, haha, we have to discuss this right? Your remedy is MOTION FOR BILL OF PARTICULARS for

insufficient information, what else?! You can file a Motion to Quash. Most specially if the information does not

constitute an offense. Or the information is defective. Ok? Now, what elese do we need? For purposes of a

sufficient information?

Acts or omissions constituting the offense. You need to give the facts and surrounding circumstances taking into

consideration the elements of the crime. Do you need to allege aggravating and qualifying circumstances? YES.

Kailangan ba class un? tinanong na to sa bar ng 2005, the answer is YES. Sir even generic? YES! To be taken against

the accused, it should be alleged in the information. Hindi ko na idi-discuss yung when I was a student hindi na,

malilito kayo e. there was a different rule when I was a student. Today, you have to allege both aggravating generic

and qualifying circumstances, do I need to allege the exact wording of the law? Not necessarily. Not necessarily.

Why sir? Because, all that is required by the law is a statement that falls within aggravating generic or qualifying

circumstances. Nombrecia v. People it says What determines the real nature and cause of the accusation against

the accused is the actual recital of facts stated in the information and not the caption or preamble so you have to




SEC. 9. Cause of the accusation.The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute, but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment.

look at the allegation of facts in the body of the information and not the preamble or caption nor specifications of

the provisions of the law alleged to have been violated.

Now my next question: Do you need to state the law that was violated? the next requirement for sufficiency of

information is what? Designation of the offense by statute, what do you mean by designation? Homicide, murder,

estafa, libel, designation of the offense by the statute. But not all offenses have what? Designation by the statute.

Like violation of BP 22 ano? Anong tawag mo sa kanya? Bouncer? dahil talbog ng talbog ang tseke, HINDI, you

say VIOLATION OF BP 22, natatawa na kayo nyan a. e papano kung violation of Dangerous Drugs Law? Adik! Hindi

pwede hahaha! U follow? PUSHER! HINDI! In instances like that, you would have to refer to violation of sec5 and

sec 11 of the DDL. One is sale, one is use. If there is no designation of the offense by statute you dont need to

formulate one! E baka naman gumawa kayo ng designation of the offense by statute all you need to refer to is the?

SECTION or the PROVISION OF LAW that makes it an offense. Ok what else? Do we need to give the name of the

offended party? This is sec12. Do you need to give the name of the offended party? This was answered in the case

of Eduardo Ricarse v. CA Feb 2007. Im referring not to the accused ha, im referring to the name of the offended

party. Do we need to give it? Is it absolutely necessary or is it absolutely indispensable? The SC said, it is not

ABSOLUTELY INDISPENSABLE. Because there are crimes maybe the offended parties cannot be identified.

Although, according to this case, citing the provision of sec12, if its a crime against property and the offended

party is not identified you will have to what? Describe the property that was violated.

Let me now proceed to my next item, still on sufficiency on information: PLACE OF COMMISSION. Do you need to

put the exact address where the crime was committed? 2423 Wilson St., San Juan you need to put it? Where the

crime was committed? The exact address? What is the rule? What is the answer? NO! an APPROXIMATION, or a

statement that the crime was committed where? Within the jurisdiction of the City would suffice, UNLESS the

PLACE of commission is a material element of the offense. Like in what cases? Violation of Domicile. Trespass to

Dwelling. Arson. U follow? In all theses cases, you need to give the exact place of commission. Are we clear? Now,

what else do we need to take note here? I think I have touched before I leave completely sufficiency of

information, take note of sec9!

What is sec9? Cause of accusation. What is cause of accusation?

This is the equivalent of cause of action in civil cases, and the

requirement of law for purposes of cause of accusation is it

should be in a language that is understood by the accused. For

what purpose? Why should it be in a language that is understood by the accused? Bakit? Look beyond rule 110,

why should it be in the language known or understood by the accused? Because the same information where the

cause of accusation is alleged will be read to the accused during the arraignment. Let me ask you this question:

can the accused be arraigned in his absence? ah? O kapatid mo akusado, pwede ikaw ang ma arraign? Can the

lawyer be arraigned? NO! tandaan nyo yon! Tama yun! An accused should be present to be arraigned the case

cannot proceed without him being arraigned, HOWEVER, on the rule of procedure in environmental cases, hindi

naman itatanong, gusto ko lang alam nyo e, ok? Gusto ko alam nyo, if you applied for bail, one of the conditions for

bail in criminal cases on environmental cases is that if you are absent you waive the reading of what? The

information, and likewise as a condition of bail, the court can enter, because of your absence, a plea of? A plea of

not guilty. Medyo iba nakita nyo? Medyo iba pero hindi niyo pa yan iaano, hindi nyo pa yan ife-face nayon, but

what I would like you to take note that they have, in to do something, that maybe, maybe in the future could be

deduced, but today the accused should be present for purposes of arraignment, for the reading of the information.

What is the time now? Ok its seven oclock, I will give you a short break and then, Ill be back in 10 minutes. Well

continue until 9 oclock okay.




SEC. 14. Amendment or substitution.A complaint or information may be amended, in form or in substance, without leave of court, at any time before the accused enters his plea. After the plea and during the trial, a formal amendment may only be made with leave of court and when it can be done without causing prejudice to the rights of the accused. However, any amendment before plea, which downgrades the nature of the offense charged in or excludes any accused from the complaint or information, can be made only upon motion by the prosecutor, with notice to the offended party and with leave of court. The court shall state its reasons in resolving the motion and copies of its order shall be furnished all parties, especially the offended party. (n) If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with section 19, Rule 119, provided the accused shall not be placed in double jeopardy. The court may require the witnesses to give bail for their appearance at the trial. (14a)

END OF PART I (whew)

Let me start with duplicity of offenses. Can we join offenses in one information? Can we join as many offenses as

there are in one information? Lets say there are 5 counts of rape, 5 counts of estafa, can it be included in one

information? Whats the answer? The answer is NO! for every offense, there should be one information that is

the general rule! EXCEPT sir except what? Except if there is a single punishment for various offenses, like? A

COMPLEX CRIME. U follow? If there is a single punishment for various offenses, it can be contained in one

information. But the general rule is: EVERY OFFENSE SHOULD HAVE ONE INFORMATION. Now let us say, if by

chance, one information contained more than one offense? Can the court render a valid judgment? Not a complex

crime, that is found in rule 120 sec3: For as many offenses as there are if contained in one information and there

was no objection on the part of the accused, each of the offense established and proven can be taken against the

accused. Are we clear? So the rule is: ONE INFORMATION, ONE OFFENSE, UNLESS, there is a single punishment for

various offenses. You can refer to rule120 sec3 that tells us if there are more than offense in one information if all

of them are established and proven and there was no objection on t

criminal procedure - salvador 2010 bar review lecture transcript 70 pages

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